Chittenden County State’s Attorney Sarah George appears to be in a standoff with Vermont State Police over whether to charge Shelburne Cpl. Jon Marcoux with simple assault over a use-of-force incident earlier this year.

George, in an email to the Shelburne News, said that she had asked the state police to cite Marcoux for simple assault, but the state police told her they “did not believe there was probable cause and therefore would not swear to an affidavit nor issue a citation.”

The state police, who investigated the incident per George’s request, said in response that George had already “independently determined that probable cause existed to support” a simple assault charge. State police investigators, however, determined there was no probable cause and that signing an affidavit would be “unethical,” and that George can pursue charges independent of the police.

“The filing of a criminal charge requires an investigator to swear to a formal, written statement called an affidavit that affirms the investigator’s belief that probable cause exists to support the charge. If an investigator does not believe this standard has been met, it is unethical and inappropriate for the police officer to swear to an affidavit he or she believes is untrue,” Adam Silverman, the public information officer for Vermont State Police, said in a statement.

“Generally speaking, state’s attorneys have their own options to pursue charges independently of the police,” he added.

It is unclear whether George has decided to pursue charges against Marcoux — prosecutors can bring charges against members of law enforcement without support from the police — but emails and voicemails seeking clarifications were not returned before press deadline.

The impasse between the two law enforcement agencies stems from a use of force incident that occurred in Shelburne on Jan. 23, when Marcoux, the department’s public information officer who has been on administrative leave for months, was involved in an incident where someone had their car stolen.

Dispatch relayed the report to Marcoux. He eventually found the vehicle and pulled the driver over on Shelburne Road, where the use of force in question allegedly occurred. The individual was taken into custody on a charge of operating a vehicle without the owner’s consent.

Precise details of the incident remain unclear, however. Records obtained via a public records request to the Vermont Department of State’s Attorneys and Sheriffs were heavily redacted due to the ongoing investigation.

Information in the report, if released, could “interfere with any criminal prosecutions” or “reveal the identity ... of individuals who are potential witnesses to or victims of a crime,” Evan Meenan, deputy director of the department, said previously.

Multiple body camera recordings were taken from the incident, including three from Marcoux and one from officer Bob Lake, who was also involved.

After the incident, a use of force review was submitted, and Shelburne Police Chief Michael Thomas requested via email that George review the video recordings “for potential criminal charges.”

George responded to Thomas the following day, telling him that after viewing the report, along with the video recordings, “I do agree that Officer (Marcoux) used excessive force in this incident,” according to an email exchange obtained via a public records request.

George then asked the state police to investigate — despite having already determined Marcoux had used an excessive amount of force on her own, according to email exchanges.

In a Feb. 11 email to state police officials working on the investigation, George said she would be the point of contact “but since the decision has already been made that the use of force was excessive, I would prefer this be treated like any other assault investigations and have the Troopers assigned make a recommendation or decision regarding a citation, rather than it being sent as a review.”

State police Capt. Jeremy Hill, commander of the bureau of criminal investigations, said the investigation was completed on May 31. The detective who conducted the investigation, however, “was unable to establish the legal standard that probable cause existed to support a criminal charge,” Silverman said.

“The investigation was reviewed by multiple layers of supervisors within VSP and the Department of Public Safety, including by the then-commissioner, who all agreed with the conclusion that the facts did not support a finding of probable cause,” Silverman said. “VSP informed State’s Attorney George of this determination.

George on June 15 told the Shelburne News that the state police had “not made any recommendations to me or my office about whether a citation would be appropriate — they simply provided me with the information.”

Two weeks later, on June 30, George asked them to charge Marcoux with simple assault, but state police informed her they would not.

George handily won reelection to her seat last week after beating Ted Kenney by nearly 7,000 votes. It was her first contested election since she was appointed to the seat in 2017 to fill in for TJ Donovan, who vacated the office for the position as attorney general.

The election served as a referendum of sorts on George’s reform-minded practices in her role as the county’s top prosecutor.

George has ended cash bail, has effectively decriminalized possession without a prescription of addiction therapy drugs like buprenorphine and Suboxone, and adopted a policy of not pursuing charges where evidence was collected during traffic stops for things such as a suspended license or a broken taillight in an attempt to reduce racial bias in traffic stops.

Marcoux’s future with Shelburne, meanwhile, remains uncertain. Thomas has said he is “waiting for clarification” and that it remains an internal issue.

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